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Unemployability Moot

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Waffles

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Can the VA declare unemployability moot, not mention it all and then come back on appeal and state that if they would have declared unemployability they would of used specific SC disabilities? 

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6 minutes ago, Waffles said:

can you elaborate on your statement about "you need to ask your VSO if your filed the IU fast letter & if they will award IU then bradly v. peake would apply"?

The United States Court of Appeals for Veterans Claims (Court) has noted that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement SMC under 38 U.S.C.A § 1114. Moreover, VA has a duty to fully and sympathetically develop a veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004).

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  • HadIt.com Elder

  YOU QUOTED''then I requested unemployability; they declared unemployability moot and granted me 100% P/T and my disabilities changed to this'': 

Did you specifically file a claim for IU ?  Not just Request it...    

 you have to file for IU  ===== Just a request for IU  Will not fly  it has to be filed for.

''can you elaborate on your statement about "you need to ask your VSO if your filed the IU fast letter & if they will award IU then bradly v. peake would apply"?

 Yes Mam ,the VSO might have filed for the IU on your behalf...  you need to ask him/her  or get your C-file and look.

If you were IU then this would change the way your rated and should be inferred to the SMC S

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Thank you everyone. I will continue to fight the good fight. Like I stated above... I did appeal and the BVA denied my appeal as well.  I haven't got the denial letter from the BVA as of yet but I'm sure its the same jaw jacking the RO gave me. I know that I deserve and qualify for SMC s but how I get it or fight for it is beyond me. I even put in my appeal Buie v. Shinseki and argued Housebound inferred over housebound 100 plus 60 to no avail. The beat goes on......

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@Buck52 good question. Shoot I don't even know it was so long ago. I'm gong to have to find out. I didn't know that it made a difference. I do know that the Denver RO did not address it and did not specifically address any identified disabilities as a claim for increase in the rating decision, in addition to the issue of TDIU. They just said it was moot and that was it.

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  • HadIt.com Elder

I think your getting confused about the way you were rated the 100% P&T.

These are combined ratings and they added them up to the 100% scheduler with P%T 

If you had filed a claim for IU using the fast letter broncovet mention  then you would have probably been awarded the IU If one or more or all those disabiity's kept you from working.

since they awarded you the 100% P&T you now need a separate and distinct disability rating of 60% or higher..to meet the SMC Criteria.

Once Again the IU would have change that...Normally IU is given to Veterans that don't meet the 100% criteria...but can't work due to their disability and that disability was rated under the 100%

Actually a IU claim is a claim for increase!

Are you saying they should have inferred the SMC -S based on just the 100%??

Edited by Buck52
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No, I'm saying they could of deemed me unemployable based on my 60% SC voiding dysfunction alone and then used the rest to grant me SMC S.  They didn't do that and just granted me 100% P/T or they could of granted me housebound in fact because I have medical evidence from my urologist that clearly states "she has up to hourly urination daily that would cause interference with an occupation that would not allow her to take frequent restroom breaks or required her to be at a specific location more than one hour at a time. Nocturia would cause her to have insufficient sleep to participate in a productive full day of work". Apparently, none of this was good enough. And my urologist noted that "during interstitial cystitis flare-ups the claimant may not leave the home for weeks at a time". I mean come on man...….    

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